Opinion
Case No. 1:05-CV-828.
July 17, 2006
ORDER
Petitioner Bennie A. McElwain has objected to United States Magistrate Judge Ellen S. Carmody's Report and Recommendation which recommended dismissal of Petitioner's habeas action as filed outside of the one-year limitation period of 28 U.S.C. § 2244(d)(1). Petitioner has objected to the Magistrate Judge's finding of untimeliness on the ground that the Magistrate Judge did not consider that his Petition was asserting a constitutional claim arising from the United States Supreme Court's June 2005 decision in Halpert v. Michigan, 125 S. Ct. 2582 (2005). This is significant because section 2244(d)(1)(C) permits delayed motions filed within one-year of such Supreme Court decision provided that the right recognized is to be applied retroactively. Western District of Michigan Local Civil Rule 72.3(b) permits a District Court Judge to recommit a matter to a Magistrate Judge for further findings. In this case, it would be useful to obtain further findings on the issue of whether Petitioner qualifies for a section 2244(d)(1)(C) extension or other extension premised on the Halpert violation. In making such findings, the Magistrate Judge may also consider other relevant matters, without limitation, including whether Petitioner has properly exhausted available state remedies as to a Halpert claim.
Another interesting question raised by this Petition is whether a Petitioner who is prevented by unconstitutional practice of the State from filing an appeal of his criminal sentence (a Halpert violation) is entitled to an extension under section 2244(d)(1)(B) or an equitable extension on that basis.
THEREFORE, IT IS HEREBY ORDERED that Petitioner's Objection (Dkt. No. 6) is GRANTED to the limited extent that this matter is recommitted to the Magistrate Judge for further findings consistent with this Order.